WASHINGTON - An estimated 17,000 Iraqis detained in their own country by occupying U.S. forces may soon face transfer into an Iraqi government detention system where reports of abuse and torture are commonplace, says a leading human rights advocacy group.
A Human Rights Watch (HRW) statement Wednesday focuses on the potential for detainee transfers according to the stipulations of the U.S.-Iraqi security deal, a draft of which is currently before Iraq's cabinet and parliament for approval. There are reports this week that the cabinet has decided to reopen negotiations on some aspects.
"Human Rights Watch called on the U.S. government to ensure that detainees are not in danger of being tortured by establishing a mechanism that would provide each detainee with a genuine opportunity to contest a transfer to Iraqi custody, and by verifying the conditions of Iraqi detention facilities to which they could be transferred, through inspections whose results are made public," said the statement.
HRW's statement points to the fact that such a mechanism, or at least something which accomplishes the same check on transfers, is required by international law both in the laws of armed conflicts, as codified for prisoners of war in the Geneva Conventions, and the U.N. Convention Against Torture, which was signed and ratified by the U.S.
It is illegal to transfer a prisoner into a situation where they face a credible risk of torture or abuse.
The controversial U.S.-Iraqi security pact, known as a Status of Forces Agreement (SOFA), is being designed to allow U.S. forces to wage war in Iraq after the U.N. mandate under which they currently operate expires at the end of this year.
But the SOFA, which was originally scheduled for completion this summer, has been bogged down by U.S. reluctance to give in to the ever increasing demands of Iraqi authorities emboldened by their successes in passing legislation and suppressing what had, until this year, been a persistent insurgency.
Two of the provisions deal with Iraqis currently being detained by the U.S.
"We're getting out of the detention business," Brig. Gen. David Perkins, a spokesman for the U.S.-led forces in Iraq, told the New York Times this week.
The detention of Iraqis has been a public relations disaster for the U.S. occupation, particularly after the Abu Ghraib scandal, where photos of prisoner abuse ended up in the media, causing global outrage.
"I know that the U.S. has an interest in getting the detainees off their hands, and I know that Iraqis want to have detention powers," the executive director of HRW's Middle East and North Africa Division, Sarah Leah Whitson, told IPS. "I also know that [the Iraqi authorities] don't feel equipped [to deal with a flood of detainees]."
Those ambiguities, said Whitson, are apparent in the vague text of the current SOFA draft, where the two provisions dealing with detainees contradict each other somewhat.
"I would say that [the detainee issue] is not consistently addressed in the security agreement," Whitson told IPS. "In the current agreement, [the U.S.] is supposed to release the detainees. But in another part of the agreement, they're supposed to transfer the detainees."
It's not clear which of the provisions apply under what circumstances. Whitson says inconsistencies should be concretely cleared up, though it is not of central importance to HRW.
"Per se, it doesn't matter who is detaining [Iraqis] or who has the right to detain them," Whitson said, "but how they are being treated wherever they are being detained."
"There is a really serious risk of torture and abuse of detainees," she said.
In a 2005 report from HRW, nearly every interviewed prisoner in the Iraqi detention system, regardless of whether they were common criminals or anti-government insurgents, complained about some kind of maltreatment.
"It's an ongoing problem and I don't think you'd find the Iraqi government denying that there's a problem in the Iraqi detention system," Whitson told IPS.
Because of the secrecy of the military reviews that give a shaky legal justification to the detentions, little about the charges against detainees are known. But it is widely assumed that many of those in U.S. custody ended up there because they were anti-government insurgents or anti-U.S. fighters.
Because of this, the freeing of detainees, when it should arise, has struck fear into some of Iraq's politicians.
"The draft security pact says that the Americans will release all the detainees from their bases as soon as the pact is signed, which means they'll release criminals from Qaeda and militants," said Haider Al-Abbadi, a senior politician in Iraqi Prime Minister Nouri al-Maliki's Dawa party, according to the New York Times.
Sectarian rifts could play into both this calculation as well as the potential for harm to prisoners transferred into Iraqi custody.
Many of the former insurgent fighters detained by the U.S. are likely to be Sunnis, who made up the bulk of the anti-government forces. But the deep-seated resentment of Sunnis, who were the minority ruling sect under the former dictatorship of Pres. Saddam Hussein, by Shias, who now dominate the central government and control most ministries, could potentially lead to harsh conditions for Sunni inmates.
While the transfer of current detainees is unclear in the SOFA, one change that appears likely to make it through this draft states that the U.S. will no longer be able to detain suspected insurgents for more than 24 hours.
At the peak of detention by U.S. forces in the fall of 2007, some 26,000 Iraqis were being held. Two thousand of the 17,000 still in custody are set to be released next month.
In the same statement, HRW also took the opportunity to address another issue in the SOFA -- the authority to prosecute those responsible for abuses, potentially including U.S. forces and contractors.
"Human Rights Watch called on the Iraqi and U.S. governments to ensure that whatever form a security agreement may take," the statement said, "it will not allow a legal vacuum in dealing with military personnel and contractors who commit abuses."